2017 (9) TMI 623 - AT - Service Tax

Liability of service tax - work relating to photostudio - whether the liability of service tax is on gross value collected for the services of photography and photography studio/ agency provided by the appellant? - Held that - the appellant is liable to pay service tax for the gross amount received on account of services of photography & Photostudio agency - there cannot be two opinions that the liability of service tax payable by the appellant is for the gross value collected for the service of photography and photography studio/agency rendered to the customers. It is an undisputed fact that the appellant has already paid the demand of service tax confirmed by the impugned order - demand of tax with interest sustained. Penalty u/s 78 - Held that - when there is no willful suppression or misstatement of facts, fraud, and collusion with intent to evade payment of Service Tax on the part of the appellant, penalty on appellant is set aside. Appeal allowed - decided partly in favor of appellant.

Issues:
1. Liability of service tax on gross value collected for photography and photography studio/agency services.
2. Applicability of case laws cited by the appellant.
3. Determination of penalty under Section 78 of the Finance Act.

Analysis:
1. Liability of Service Tax: The main issue in this appeal pertains to the liability of service tax on the gross value collected for services of photography and photography studio/agency provided by the appellant. The appellant argued that they were not aware of the taxability of such services and did not collect any service tax. However, it was noted that the appellant had already paid the demanded service tax. The Tribunal referred to a relevant case law and held that the appellant is liable to pay service tax for the gross amount received for these services. The Tribunal emphasized that the determination of the value of taxable service in photography depends on the circumstances of each case. It was concluded that the liability of service tax is indeed for the gross value collected for the services provided, and the appellant had already paid the confirmed demand.

2. Applicability of Case Laws: The appellant cited several case laws in support of their plea, but the Tribunal found that these cases were not strictly applicable to the facts of the present case. The Tribunal specifically referred to a Larger Bench decision which clarified the valuation of services in relation to photography. The decision highlighted that the value of service in photography includes the gross amount charged, excluding the cost of unexposed film if sold to the client. Based on this clarification and the specific circumstances of the case, the Tribunal upheld the liability of the appellant to pay service tax on the gross value collected.

3. Penalty under Section 78: Regarding the penalty imposed under Section 78 of the Finance Act, the Tribunal decided that the appellant deserved relief. The penalty was dropped as there was no evidence of willful suppression, misstatement of facts, fraud, or collusion with the intent to evade payment of service tax on the part of the appellant. Therefore, the penalty under Section 78 was not upheld, and the impugned order was modified accordingly. The appeal was partly allowed in terms of dropping the penalty while sustaining the demand of service tax along with interest.

In conclusion, the Tribunal affirmed the liability of the appellant to pay service tax on the gross value collected for photography and photography studio/agency services. The case laws cited by the appellant were deemed inapplicable, and the penalty under Section 78 was dropped due to lack of evidence of willful misconduct. The impugned order was modified accordingly, and the appeal was partly allowed with respect to the penalty issue.

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